The Relevance of State Constitutional Rights to a Federal Constitutional Right:

Orin asks -- in the context of our discussion of self-defense rights -- why the existence of state constitutional rights would be relevant to whether there is an analogous federal constitutional right. Let me offer a few thoughts on this.

1. Tradition: To begin with, the Court has made clear that whether American law traditionally recognizes a right is relevant to the existence and scope of federal constitutional rights. Washington v. Glucksberg says the existence of such a tradition is necessary to recognizing an unenumerated right (and Glucksberg strikes me as still important despite Lawrence v. Texas's seeming departure from the Glucksberg approach). Richmond Newspapers v. Virginia relied heavily on tradition in recognizing a First Amendment right of access to criminal trials (even though generally the First Amendment has not been read as securing a right of access to government property or proceedings).

Justice Scalia has long argued that traditional recognition of restraints should generally lead courts to uphold those restraints as constitutional, even where the question relates to the scope of an enumerated constitutional right. Likewise, in D.C. v. Heller itself, Justice Scalia suggested that various traditionally accepted gun controls would be constitutional, and my sense was that he was chiefly relying on tradition in doing so.

More broadly, in our legal system tradition -- which is to say the accumulated judgments of important governmental decisionmakers -- influences court decisions. That's clearest when the tradition comes from judicial precedent (even of other courts), but it's also visible when courts rely on legislative decisions (again, even outside the jurisdiction) and other governmental judgments. There are, for instance, many tort law cases in which courts choosing a common-law tort rule consider as authority the decisions of other state legislatures as well as the decisions of other courts.

2. State Constitutional Rights: And if courts look to traditional recognition of a right as evidence that the right should be further constitutionalized, it seems to me that recognition in state constitutions should be an especially influential form of recognition. Now it need not always be so, for instance if the right is controversial, and some state constitutions recognize it but others deliberately reject it. (Consider, for instance, "right to work" amendments in some state constitutions, which bar private employers and unions from requiring that all employees pay union dues.) But in a case such as self-defense, there is no such controversy. Rather, all the states recognize the right as a matter of common law or statute, and on top of that 21 states recognize the right in a state constitution, plus 23 more recognize a state constitutional right to bear arms in self-defense.

The state constitutional evidence as to self-defense (whether the 44 states if you include the right to bear arms in self-defense states, or only the 21 that speak separately of the right to defend life) thus strikes me as evidence of a particularly strong and important tradition of protecting the right. The state constitutional evidence may be neither necessary or sufficient, but it seems an important piece of data nonetheless, and likely to be of influence on courts considering -- especially under the Glucksberg rule -- whether to recognize a federal constitutional right of self-defense.

3. Rebutting the Charge of Novelty: Finally, consider a question that Orin himself asked as to whether there's a constitutional right of self-defense:

If it's so obvious, why is it that no one has recognized the right before? Indeed, why is it that (as far as I know) no one litigated the issue in court in the last 220 years despite hundreds of thousands if not millions of opportunities?

For reasons related to what I said in item 1, these sorts of questions are very important in a fundamentally conservative legal system, or for that matter to anyone who takes a Burkean or Burkeanish approach to constitutional law. Remember, as the old saying goes, "law is the only field where 'that's an original idea' is a pejorative."

Well, the state constitutional cases, and the court decisions I cited in which the claim was raised by the parties and in which the court recognized a constitutional right, seems to answer Orin's objection: Some people, specifically at least 21 sets of state constitutional drafters, plus the judges who applied the provisions, did recognize the right. Some people litigated the provisions -- not often, perhaps because the right to self-defense has been so broadly accepted, but sometimes. It's true that most of the cases involved people raising specific state constitutional rights, but some spoke more broadly about constitutional principles that weren't mentioned in that particular state's constitutional text. And of course it makes sense that litigants in state court would raise state constitutional objections, especially before the massive federalization of constitutional criminal procedure that mostly took place in the 1960s.

So I hope the state constitutional evidence -- both the provisions and the many cases I cited that apply the provisions, including sometimes to trump contrary statutes (and sometimes to interpret statutes or common-law principles) -- does help respond to Orin's
"If it's so obvious, why is it that no one has recognized the right before?" objection. One can still argue, of course, that for various reasons the federal courts should decline to recognize a federal constitutional right to self-defense. But I hope I've demonstrated that the state constitutional evidence is important here, even if not by itself conclusive.

Your second point is good as far as it goes, but it should also be considered that many state constitutions went further than the U.S. Constitution in trying to recognize what they considered natural, inherent, or God given rights. Because these state constitutions were more explicit in protecting what was merely alluded to in the ninth, they can and should be used as a guide for the identifying those "others retained by the people."

1.) What are the source of rights, and
2.) By what process does the U.S. Consititution include "unenumerated rights?

The first question invites distracting musings on natural law, and immanence, and social contracts and such, but are these are second order concerns. A more pragmatic apporoach would consider that the concept of rights has no relevance in the absence of a societal authority that can constrain his conduct. The source of rights then, is whatever power prevents a government or other authority from using force to limit a particular type of conduct. the source of rights under the Magna Carta was not a royal reservoir of altruism previously untapped, but the ability of the nobles to restrict King John from using force to disrupt the activities that the nobels wished to protect.

In the United States, the use of government force to accomplish whatever purpose is limited by the process that the founders chose to form a government using the principle stated in teh Declaration of Independence that governments "deriv[e] their just powers from the consent of the governed." Thus, the practical source of rights under the Constitution is its structure that presumes that the government has no power absent the assent of the people (e.g. providing that legislation regarding revenue originate in the House, and limiting funding of the military to two year increments, setting a high bar for amendment, etc). It is therefore understandable that rights begin to erode when checks and balances are disregarded. ( I also think that a lot of the criticism of Kennedy in the child rape decision was his unilateral assumption of arbiter as to whether there had been sufficient assent to affectively "grow" the eighth amendment.)

Therefore, in my opinion, the source of the right of self defense is that free people do not assent, because of tradition or natural law, common sense, or individual philosophy or whatever, to the government, by force, prohibiting a free citizen from protecting himself. I believe this to be Professor Volokh's point (but I could be wrong): that state constitutions, tradition, or what have you reflect whether the people to allowing the government to use force in limiting self defense.

Now the question becomes, did, or does the Constitution inherently recognize the right of self defense, such that the orderly functioning of society and respect for law provide that the government may not infringe the right, absent rebellion or other extraordinary means of the people withholding assent? Apparently Professor Kerr thinks that it might, but you'll have to prove it. Professor Volokh seems to hold that we can look to extraneous sources to determine if the government was ever intended to have that power. The practical issue is whether, if a legislature paseed a law outlawing self-defense, would a Court defer to the legislature, or find that the law transgressed unenumerated principles of basic liberty. (Well, we know how Kelo turned out.)

One can resort to penumbras and emanations and incorporation to answer the question, and of course, this is why there could very well be a 5-4 or 6-3 split on a decision if it ever came to the Supreme Court. Breyer would probably reprise his balancing test hooey but I think that Scalia's reasoning in Heller, as opposed to his conclusion, would find a Constitutional right to self defense (on historical grounds and such) but, like the right to keep and bear arms, one that can be limited, and by definition, infringed.